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Terms of Appellate Court’s Remittitur Must Be Strictly Followed

In a breach of contract action that had been remitted to Supreme Court, the Second Department determined Supreme Court failed adhere to the terms of the remittitur by failing to calculate interest and express the amount due and owing in accordance with the remittitur. In sending the case back to Supreme Court, the Second Department wrote:

“A trial court, upon remittitur, lacks the power to deviate from the mandate of the higher court” …. “An order or judgment entered by the lower court on a remittitur must conform strictly to the remittitur'” …. Berry v Williams, 2013 NY Slip Op 03625, 2nd Dept, 5-22-13

 

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Defendant’s Burdens Re: Summary Judgment in Slip and Fall Case—Notice and Act of God​

In affirming the denial of defendant’s motion for summary judgment in a water-on-floor slip and fall case, the Second Department explained that a defendant can not point to gaps in the plaintiff’s case to meet its affirmative proof burdens re: notice and “act of God:”

A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of establishing, prima facie, that it neither created the dangerous condition that allegedly caused the underlying accident nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it…. This burden cannot be satisfied merely by pointing to gaps in the plaintiff’s case … . * * *

With respect to the issue of whether the … defendants created a hazardous condition, they failed to establish their prima facie entitlement to judgment as a matter of law based on their contention that the water condition at the premises was caused by an act of God. For a loss to be considered the result of an act of God, human activities cannot have contributed to it in any degree… ..  Sawicki v GameStop Corp, 2013 NY Slip Op 03657, 2nd Dept, 5-22-13

 

 

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Allegations Not Supported by Record Could Not Defeat Plaintiff-Pedestrian’s Motion for Summary Judgment/Plaintiff’s Mental Health Records Discoverable Where Plaintiff Alleges Anxiety and Mental Anguish After Being Struck by Defendant’s Van

Plaintiff was struck by defendants’ van as she was crossing a street.  In opposing the plaintiff’s motion for summary judgment, defendants claimed plaintiff was crossing when the signal was flashing the “don’t walk” icon, was talking on a cell phone, and “jumped” in front of defendants’ van.  In determining Supreme Court should have granted plaintiff’s motion for summary judgment, the Second Department wrote:

The plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that she entered the crosswalk after exercising reasonable care and was walking within the crosswalk with the pedestrian crossing signal in her favor, and the defendant Kilakos was negligent in failing to yield the right of way (see Traffic Rules and Regs of City of NY [34 RCNY] § 4-03[a][1][i]; [c][1], [2];…). The assertions made by the defendants in opposition lacked an evidentiary basis in the record and, thus, failed to raise a triable issue of fact …. Accordingly, the Supreme Court should have granted the plaintiff’s motion for summary judgment on the issue of liability.

The Second Department also determined Supreme Court properly granted defendants’ cross motion to compel the disclosure of plaintiff’s mental health records because she sought damages for anxiety, mental anguish and loss of enjoyment of life. Moreira v MK Travel & Transp, Inc, 2013 NY Slip Op 03645, 2nd Dept, 5-22-13

TRAFFIC ACCIDENTS, PEDESTRIANS

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Allegation Plaintiff Abruptly Changed Lanes and Stopped in Front of Defendant Precluded Summary Judgment in Rear-End Collision Case​

In a rear-end collision case, the Second Department determined the allegation that the plaintiff abruptly changed lanes and came to a sudden stop in front of defendant raised a question of fact about plaintiff’s negligence:

Here, the plaintiff established, prima facie, his entitlement to judgment as a matter of law by demonstrating that his vehicle was fully stopped at a red traffic light when it was hit in the rear by the defendants’ vehicle…. In opposition, the defendants raised triable issues of fact as to whether the plaintiff was negligent in the operation of his vehicle, and whether his alleged negligence caused or contributed to the accident, through the affidavit of the defendant driver Roni J. Jaquez. Jaquez averred that the plaintiff’s vehicle abruptly changed lanes, directly in front of his vehicle, and then came to a sudden stop. … Markesinis v Jaquez, 2013 NY Slip Op 03641, 2nd Dept, 5-22-13

TRAFFIC ACCIDENTS

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Speculation About Cause of Fall Required Dismissal of Complaint​

In determining the plaintiff’s resort to speculation about the cause of her fall required dismissal of the complaint, the Second Department wrote:

“In a slip-and-fall case, a plaintiff’s inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation” …. Here, the moving defendants established their prima facie entitlement to judgment as a matter of law by submitting, inter alia, the deposition testimony of the plaintiff and her husband, which demonstrated that the plaintiff could not identify the cause of her fall without resorting to speculation …. Although the plaintiff claimed that a bar connected to the bottom step of the bus caused her to trip, she acknowledged that she did not see this bar before her fall, that she did not know which foot made contact with the bar, and that she only assumed that she had tripped on the bar after she regained consciousness and went looking for the source of the fall. Deputron v A&J Tour, Inc, 2013 NY Slip Op 03629, 2nd Dept, 5-22-13

 

 

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Sudden Unexpected Action by Student Did Not Support Action Based on Negligent Supervision

In determining a student’s special education aide, who was standing nearby when the 8-year-old student suddenly placed his fingers inside the hinged side of a bathroom door (thereby immediately suffering injury), could not be liable for negligent supervision, the Second Department wrote:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” …. “Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another” …. Moreover, “[w]here an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the . . . defendant[ ] is warranted” … .  Gilman v Oceanside Union Fee Sch Dist, 2013 NY Slip Op 03634, 2nd Dept, 5-22-13

 

 

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New York City Administrative Code Imposing a $2000 Fine for Removal Recyclable Material from Curb Violated Excessive-Fines Clauses​

In a full-fledged opinion by Justice Richter, the First Department determined the New York City Administrative Code provision which imposed a $2000 fine for the removal of recyclable material from the curb violated the Eighth Amendment as applied.  The code provision was designed to prevent large scale removal of recyclable material which deprived the City of recycling income. The petitioner was an artist who used recyclable material in his work.  He picked up a television antenna which had been put out on the curb.  He was pulled over by the NYC sanitation police, given a summons mandating a $2000 fine, and his vehicle was seized.  The First Department wrote:

It is undisputed that petitioner violated the relevant Administrative Code provision—he removed and transported a recyclable object using a motor vehicle. Nevertheless, under the specific circumstances here, we conclude that the mandatory $2,000 penalty amounts to an unconstitutionally excessive fine. The Eighth Amendment of the United States Constitution forbids the imposition of “excessive fines.” The New York State Constitution contains the same prohibition (art I, § 5). The Excessive Fines Clause ” limits the government’s power to extract payments, whether in cash or in kind, as punishment for some offense””… . A fine is unconstitutionally excessive if it “notably exceeds in amount that which is reasonable, usual, proper or just” …. Thus, the Excessive Fines Clause is violated where the fine is “grossly disproportional to the gravity of [the] offense”… . Matter of Prince v City of New York, 2013 NY Slip Op 03623, 1st Dept, 5-21-1

 

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Time of the Essence Adequately Stated​

In holding that an attorney’s letter sufficiently stated “time of the essence,” the First Department wrote:

“A party need not state specifically that time is of the essence, as long as the notice specifies a time on which to close and warns that failure to close on that date will result in default”… . [The attorney’s] February 11, 2009 letter warned, “[I]n the event you do not close, I shall release the escrow funds to [the seller].” Such language informs a buyer that he risks default by not appearing at the closing… . Accordingly, because this was a time-of-the-essence closing, plaintiffs defaulted by failing to appear, and defendant … was entitled to keep the down payment … .  Westreich v Bosler, 2013 NY Slip Op 03604, 1st  Dept, 5-21-13

 

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